POST JUDGEMENT REMEDIES

Q: FACOMA, represented by its Directors Belara and Pagonzaga instituted an action for quieting a title
and recovery of ownership and possession of a parcel of land, and damages against respondents Heirs
of Cabotaje and Francisco Estrada. The RTC ruled in favor of the plaintiffs. Thereafter, the respondent
Heirs of Cabotaje filed notice of appeal and the RTC deemed their motion for reconsideration as a pro
forma motion, failing to toll the reglementary period to file an appeal. However, the CA found that the
Motion for Reconsideration filed by respondent Heirs of Cabotaje is not a pro forma motion. Hence, the
Notice of Appeal filed by the latter was not filed out of time. Is the CA correct?

A: YES. A Motion for Reconsideration is not a pro forma motion just because it reiterated arguments earlier
passed upon and rejected by the appellate court. A movant may raise the same arguments precisely to
convince the court that the ruling was erroneous. The Court upholds the CA’s finding that respondents
Heirs of Cabotaje’s Motion for Reconsideration on the RTC’s Decision is not a pro forma motion that
prevented the tolling of the reglementary period to file an appeal.

Q: May a defendant who has been declared in default right away avail of a petition for relief from the
judgement subsequently rendered in the case? (2007 BAR)

A: NO. The remedy of the petition for relief form judgement is available only when the judgement or order
in question is final and executory, i.e., no longer appealable. It is an equitable remedy allowed only in
exceptional cases from final judgements or orders where no other remedy is available.

Q: Two years after receiving a copy of a decision rendered by a Regional Trial Court, a party engaged a
counsel and asked them to work on reopening the case. The party explained that it took two years to
find the best legal counsel available, and that counsel had to await two years to pass the #BestBarEver
2020-21.

After perusing the judgement and case records, the counsel filed before the Court of Appeals a petition
for annulment of judgement under Rule 47 of the Rules of Civil Procedure, asserting that the trial judge
improperly assessed the evidence and misapplied a doctrine long adopted by the Supreme Court. Will
the petition for annulment of judgement prosper?

A: NO. The petition for annulment of judgement will not prosper. Under the Rules, an action for annulment
of judgement may be based only on the ground of extrinsic fraud and lack of jurisdiction. Here, the grounds
raised by the counsel in his petition are the improper assessment of the evidence and the misapplication
of an abandoned doctrine, which have nothing to do with extrinsic fraud or lack of jurisdiction but are
errors of judgement which are proper subject of an appeal. Hence, the petition will not prosper.
 APPEALS
Q: In a Complaint for Compulsory Recognition and Enforcement of Successional Rights" filed by Antonia
Aruego, the Regional Trial Court declared Antonia as an illegitimate daughter of the deceased Aruego
Sr. hence entitled to a share in the latter’s estate. Among others, the RTC rendered a Decision on June
15, 1992, declaring what constitutes the estate of deceased and affirmed the status of Antonia Aruego
as an illegitimate daughter of the deceased hence the latter is entitled to one-half of the share of the
deceased’s legitimate children. A Writ of Execution was issued by the RTC. Petitioners filed a Motion for
Partial Reconsideration but they did not raise therein the supposed error of the court in declaring the
properties enumerated in the dispositive portion of the Decision as comprising the estate of Aruego.
Antonia filed a Motion for Partition alleging the RTC Decision became final and executory in view of the
denial of the notice of appeal filed by petitioners and the dismissal of their Petition for Prohibition and
Certiorari by the CA and the subsequent denial of their appeal to the Supreme Court. Can the Court
review and modify the RTC Decision?

A: NO. There is no ground to justify the modification of the RTC Decision. When a final judgment is
executory, it becomes immutable and unalterable. The only recognized exceptions to the general rule on
immutability of final judgments are the correction of clerical errors, the so called nunc pro tunc entries
which cause no prejudice to any party, void judgments, and whenever circumstances transpire after the
finality of the decision rendering its execution unjust and inequitable. These exceptions, however, are not
present. What petitioners seek is an order from the court to allow them to present evidence with regard
to the properties comprising the estate of Aruego and the heirs who are to share in the inheritance. The
Court cannot issue a writ of certiorari so as to allow the petitioners to present evidence as the same should
have been raised by them during trial

Q: Can a case decided by the RTC in the exercise of its appellate jurisdiction be appealed by way of a
petition for review on certiorari under Rule 45?

A: NO. Where a case is decided by the RTC in the exercise of its appellate jurisdiction, regardless of whether
the appellant raises questions of fact, of law or mixed questions of fact and law, the appeal shall be brought
to the CA by filing a petition for review under Rule 42.

Q: Melissa filed with the BIR a complaint for refund of taxes paid, but it was not acted upon. So, she
filed a similar complaint with the CTA and was raffled to one of its divisions. Melissa's complaint was
dismissed. Thus, she filed with the CA a petition for certiorari under Rule 65. Does the CA have
jurisdiction over Melissa's petition?

A: NO. A decision of a division of the CTA is appealable within 15 days to the CTA en banc. On the other
hand, a party adversely affected by a decision or ruling of the CTA en banc may file with the SC a verified
petition for review on certiorari pursuant to Rule 45 of the Rules
Q: Eliza voluntarily offered for sale to the government, under Comprehensive Agrarian Reform Program,
a parcel of land. Pursuant to E.O. No. 405, Landbank made a valuation of the land. Eliza, thereafter,
rejected Landbank’s valuation. Thus, the matter was endorsed to the Office of the Provincial Agrarian
Reform Adjudicator (PARAD) and then was transferred to the Office of Regional Agrarian Reform
Adjudicator (RARAD). The Regional Adjudicator (RA) fixed the compensation. Not satisfied, Landbank
filed a petition for just compensation before the RTC, acting as Special Agrarian Court (SAC). Eliza filed
a Motion for Execution of Judgment before the Office of the RA. The RA granted the motion for execution
and issued an order directing the issuance of a writ of execution and an alias writ of execution since the
former was returned unsatisfied. Landbank sought from the SAC the quashal of the writ which the SAC
denied. Hence, it filed before the Department of Agrarian Reform Adjudication Board (DARAB) a petition
for certiorari. DARAB granted. Does DARAB has jurisdiction in granting the petition for certiorari?

A: NO. Jurisprudence has settled that DARAB possesses no power to issue writs of certiorari. Jurisdiction,
or the legal power to hear and determine a cause or causes of action, must exist as a matter of law. It is
settled that the authority to issue writs of certiorari, prohibition, and mandamus involves the exercise of
original jurisdiction which must be expressly conferred by the Constitution or by law.

As an administrative agency exercising quasijudicial but not consummate judicial power, DARAB is
inherently incapable of issuing writs of certiorari. This is not merely a matter of statutorily stipulated
competence but a question that hearkens to the separation of government's tripartite powers: executive,
legislative, and judicial. DARAB's exercise of the innately judicial certiorari power is an executive
encroachment into the judiciary. It violates the separation of powers; it is unconstitutional. With or
without a law enabling it, DARAB has no power to rule on jurisdictional controversies via petitions for
certiorari. DARAB's self-serving grant to itself of the power to issue writs of certiorari in the 1994 DARAB
New Rules of Procedure is itself a grave abuse of discretion amounting to lack or excess of jurisdiction. It
must be annulled for running afoul of the Constitution.
 PROVISIONAL REMEDIES
ATTACHMENT
Q: CA Manila granted a writ of preliminary mandatory injunction to UniAlloy. Pursuant to RA No. 8246,
the records of the case were forwarded to CA CDO. However, in its decision, CA CDO found that UniAlloy
lost its rights to remain in possession of the property after it defaulted in the payment of lease and that
it could no longer avail the remedy of preliminary injunction to regain the possession of the disputed
premises since it already vacated the property three days prior to the filing of complaint. Does the
dismissal of a main action carry with it the dissolution of any ancillary relief previously granted therein?

A: YES. The dismissal of UniAlloy’s main action carries with it the dissolution of any ancillary relief
previously granted therein. Provisional remedies (also known as ancillary or auxiliary remedies) are writs
and processes available during the pendency of the action which may be resorted to by a litigant to
preserve and protect certain rights and interests pending rendition, and for purposes of the ultimate
effects, of a final judgment in the case. They are provisional because they constitute temporary measures
availed of during the pendency of the action, and they are ancillary because they are mere incidents in
and are dependent upon the result of the main action.

Q: PAP is a government agency charged with the management and control of all ports in the Philippines.
On the other hand, NIASSI is a duly organized Philippine corporation engaged in the business of cargo
handling. PAP accepted bids for a 10- year contract to operate as the sole cargo handler at the port of
Nasipit, Agusan del Norte. Subsequently, PAP issued a Notice of Award in favor of NIASSI and the latter
sent a Notice confirming the same to the former. Instead of formally executing a written contract, NIASSI
requested PAP to issue a Holdover Authority in its favor in view of a pending protest filed by the second
highest bidder, CASCOR. PAP granted the same and issued a HOA dated 01 Aug. 2001 or until a cargo-
handling contract shall have been awarded, whichever comes first. The HOA was extended several times
upon NIASSl’s request. However, PAP issued a letter revoking the extension and relayed to NIASSI that
PAP would take over the cargo handling services at the Nasipit Port beginning 10 Dec. 2004. NIASSI filed
with the RTC a Petition for Injunction with Prayer for the Writ of Preliminary Injunction and/or TRO. The
petition was later amended to a Petition for Mandamus with Prayer for the Writ of Preliminary
Mandatory Injunction and/or TRO. It prayed for the issuance of a writ of mandamus directing PAP to
formally execute a written contract, and a writ of preliminary mandatory injunction directing PAP to
turn over the management and operations of Nasipit Port’s cargo handling services back to NIASSI. The
RTC granted NIASSI’s petition for the Writ of Preliminary Injunction, but was later quashed upon motion
of PAP. Hence, NIASSI filed a petition for Certiorari before the CA and the latter granted the same and
found that the RTC Order was tainted with irregularities and in the process of resolving the petition of
NIASSI ruled upon the issue of the latter’s continued operations at Nasipit Port. The CA (CA-G.R. SP No.
00214) held that there was a perfected contract between NIASSI and PAP and that the HO and its
extensions constituted partial fulfillment thereof. However, upon motion for reconsideration of NIASSI,
the CA issued its Amended Decision directing PAP to execute a cargo-handling contract in favor of NIASSI
for a full 10-year term from the finality of the RTC Resolution. Hence, PAP filed the instance case
contending that the Amended Petition before the RTC had been rendered moot and academic by virtue
of the CA decision (CA-G.R. SP No. 00214). On this basis, PAP concludes that it can no longer be
compelled to formally execute a contract with NIASSI upon finality of the Amended Decision, since the
term of the perfected contract already expired 10 years after PPA received notice of NIASSI’s conformity
to the Notice of Award. Is PAP correct?

A: YES. The CA's findings In C.A.-G.R. S.P. No. 00214 constitute the law of the case between the parties,
and are thus binding herein. In its decision in C.A. G.R. S.P. No. 00214, the CA held that (i) the 10-year cargo
handling contract had already been perfected, and (ii) the HOA and its subsequent extensions constituted
partial fulfillment thereof. In turn, the Court’s decision became final and executory after the lapse of 15
days from notice thereof to the parties. From such time, the Court’s decision became immutable and
unalterable. The Court notes that C.A.-G.R. S.P.No.00214 and the instant Petition both stem from the
Amended Petition, and seek the same relief—the execution of a written contract in accordance with the
Notice of Award. Moreover, both cases involve the same facts, parties and arguments. For these reasons,
the Court believes that the doctrine of the law of the case is applicable. The doctrine of the law of the case
precludes departure from a rule previously made by an appellate court in a subsequent proceeding
essentially involving the same case.

Q. Dumaran was operating gas stations. He supplied Llamedo, Magallanes and Cubeta with gasoline and
diesel. The latter owed Dumaran an amount more than Php7,000,000.00. The check bounced. Dumaran
was able to secure writ of preliminary attachment from RTC but the CA quashed the writ for failure to
allege specifics showing that at the beginning he was defrauded into supplying them with gasoline and
diesel. Did the allegation of fraud in the complaint and the affidavit meet the requirements of the law
to sustain the issuance of a writ of attachment?

A. NO. The allegations of fraud in the complaint and affidavit do not meet the requirements of the law to
sustain the issuance of a writ of attachment. Non-payment of a debt or non-performance of an obligation
does not automatically equate to a fraudulent act. Being a state of mind, fraud cannot be merely inferred
from a bare allegation of nonpayment of debt or non-performance of obligation. In this case, the
Complaint and Affidavit did not specifically show wrongful and willful omissions that Llamedo, Magallanes
and Cubeta knowingly committed to deceive Dumaran to enter into a contract or to perform the
obligation. The pleadings filed lacked the particulars of time, persons and places to support the serious
assertions that Llamedo, Magallanes and Cubeta were disposing of their properties to defraud Dumaran.

Q: Alfred filed an action against Banjo for collection of sum of money with an ex-parte application for a
writ of preliminary attachment which was granted by the trial court. A notice of garnishment was served
by the sheriff upon the bank and summons was subsequently served upon Banjo. Banjo then filed a
motion to dissolve the writ of preliminary attachment on the ground that the court did not acquire
jurisdiction over his person as the writ was served ahead of the summons. Should the motion be
granted? (2005 BAR)

A: NO. The fact that the writ of preliminary attachment was served ahead of the summons did not affect
the jurisdiction of the court over his person. It makes the writ unenforceable; however, all that is required
is to re-serve the writ.
Q: Katy filed an action against Tyrone for collection of the sum of P1 Million in the Regional Trial Court,
with an ex-parte application for a writ of preliminary attachment. Upon posting of an attachment bond,
the court granted the application and issued a writ of preliminary attachment. Apprehensive that Tyrone
might withdraw his savings deposit with the bank, the sheriff immediately served a notice of
garnishment on the bank to implement the writ of preliminary attachment. The following day, the
sheriff proceeded to Tyrone’s house and served him the summons, with copies of the complaint
containing the application for writ of preliminary attachment, Katy’s affidavit, order of attachment, writ
of preliminary attachment and attachment bond. Within 15 days from service of the summons, Tyrone
filed a motion to dismiss and to dissolve the writ of preliminary attachment on the following grounds:
(i) the court did not acquire jurisdiction over his person because the writ was served ahead of the
summons; (ii) the writ was improperly implemented; and (iii) said writ was improvidently issued
because the obligation in question was already fully paid. Resolve the motion with reasons. (2005 BAR)

A: The motion to dismiss and to dissolve the writ of preliminary attachment should be denied.

1. The fact that the writ of attachment was served ahead of the summons did not affect the
jurisdiction of the court over his person. It makes the writ, unenforceable.
2. The writ was improperly implemented. Serving a notice of garnishment, particularly before
summons is served, is not proper. It should be a copy of the writ of attachment that should be
served on the defendant, and a notice that the bank deposits are attached pursuant to the writ.
3. The writ was improvidently issued if indeed it can be shown that the obligation was already fully
paid. The writ is only ancillary to the main action

The alleged payment of the account cannot serve as a ground for resolving the improvident issuance of
the writ, because this matter delves into the merits of the case and requires full-blown trial. Payment,
however, serves as a ground for a motion to dismiss.

Q: In a case, the property of an incompetent under guardianship was in custodia legis. Can it be
attached? Explain. (1999 BAR)

A: YES. In such case, a copy of the writ of attachment shall be filed with the proper court and the notice of
the attachment shall be served upon the custodian of such property.

Q: Andrei’s real property is being attached by the sheriff in a civil action for damages against Bernard.
Andrei claims that he is not a party to the case; that his property is not involved in said case; and that
he is the sole registered owner of said property. Under the Rules of Court, what must Andrei do to
prevent the sheriff from attaching his property? (2000 BAR)

A: If the real property has been attached, the remedy is to file a third-party claim. The third-party claimant
should make an affidavit of his title to the property attached stating the grounds of his title thereto and
serve such affidavit upon the sheriff while the latter has possession of the attached property and a copy
thereof upon the attaching party. The third-party claimant may also intervene or file a separate action to
vindicate his claim to the property involved and secure the necessary reliefs such as preliminary injunction
which will not be considered as interference with a court of coordinate jurisdiction.
Q: Roy obtained a writ of preliminary attachment upon a bond of P1 million. The writ was levied on
Ronald’s property, but it was discharged upon the posting by Ronald of a counter-bond in the same
amount of P1 million. After trial, the court rendered judgment finding that Roy had no cause of action
against Ronald and that he had sued out the writ of attachment maliciously. Accordingly, the court
dismissed the complaint and ordered Roy and its surety to pay jointly to Ronald P1.5 million as actual
damages, P0.5 million as moral damages and P0.5 million as exemplary damages. Evaluate the
soundness of the judgment from the point of view of procedure. (2002 BAR)

A: The judgment against the surety”Is n’t sound if due notice was not given to him of the application for
damages. Moreover, the judgment against the surety cannot exceed the amount of its counterbond of P1
million.

Q: After his properties were attached, defendant Porfirio filed a sufficient counterbond. The trial court
discharged the attachment. Nonetheless, Porfirio suffered substantial prejudice due to the unwarranted
attachment. In the end, the trial court rendered a judgment in Porfirio’s favor by ordering the plaintiff
to pay damages because the latter was not entitled to the attachment. Porfirio moved to charge the
plaintiff’s attachment bond. The plaintiff and his sureties opposed the motion, claiming that the filing
of the counter-bond had relieved the plaintiff’s attachment bond from all liability for damages. Should
Porifio’s motion be granted?

A: YES, Porfirio’s motion to charge plaintiff’s attachment bond Is proper and can be granted. It Is not correct
to contend that Porfirio’s filing of a counterbond constitutes a waiver of his right to proceed against the
attachment bond for the damages he suffered from the unwarranted attachment. It is a condition inter
alia of the applicant’s attachment bond that he will pay all the costs which may be adjudged to the adverse
party and all damages which the latter may sustain by reason of the attachment, if the court shall finally
adjudge that the applicant was not entitled thereto.

PRELIMINARY INJUNCTION

Q: Rev. Cortez, a missionary, put up an orphanage and school for indigenous people at Palaui Island in
Cagayan, cleared and developed for agricultural purposes in order to support his charitable,
humanitarian and missionary works. However, then President Marcos issued Proclamation No. 201
reserving for military purposes a parcel of the public domain situated in Palaui Island. More than two
decades later, Proclamation No. 447 was issued by then President Ramos declaring the whole Palaui
Island and the surrounding waters as marine reserve. Rev. Cortez filed a Petition for Injunction with
Prayer for the Issuance of a Writ of Preliminary Mandatory Injunction against the Commanding Officer
of the Philippine Naval Command Cagayan for alleged disturbance of his peaceful and lawful possession
of the said 50- hectare portion of Palaui Island when they were ordered to vacate the area. In the
application, it was alleged that at the time, respondents had been in open, continuous, exclusive and
notorious possession of the subject parcels of land for at least thirty (30) years and became its owners
by prescription. Rev. Cortez merely submitted a sketch map as evidence of his claimed area. Should the
writ be granted?
A: NO. Rev. Cortez failed to conclusively establish his claimed right over the subject portion of Palaui Island
as would entitle him to the issuance of a final injunction. Two requisites must concur for injunction to
issue: there must be a right to be protected and the acts against which the injunction is directed are
violative of said right. There is no proof showing that the subject portion of the island has been declared
alienable and disposable when Rev. Cortez started to occupy the same. Therefore, the land must be
considered as still inalienable public domain and therefore not a proper subject of possession.
Respondents merely relied on such “recognition” of possible private rights.

Q: May the RTC issue an injunction without the posting of a bond? (2006 BAR)

A: YES. If the injunction is a final injunction. Generally, however, a preliminary injunction may not be issued
without the posing of a bond, unless exempted by the trial court or otherwise provided for by law.

Q: Reta is the owner and operator of Acquarius Container Yard (ACY). ACY’s operation as a container
yard outside the customs territory has been approved by the BOC in 2006. On January 9, 2009, Reta
entered into a Memorandum of Agreement with the BOC for the free use of his container yard, ACY
located in Davao City as the designated examination area for the container vans in the Port of Davao for
a period of 25 years. The MOA also provided that the parties may revoke it for cause at any time. BOC
calimed that on February 26, 2010, Reta closed the container yard and barred customs examiners from
entering the premises. On the same date, Atty. Castigador informed Reta, through a letter, of his
intention to conduct the examination of the container vans at the Philippine Ports Authority premises
in Sasa, Davao City, and to reexamine the MOA as its purpose no longer exists. This prompted Reta to
file a Complaint with Application for Preliminary Injunction and Prayer for a Temporary Restraining
Order against petitioners. Reta claimed that after the BOC agreed to use ACY as the designated
examination area, he invested in various machineries and equipment for the examination and
inspection of container vans. He denied closing the container yard; he alleged that it was Atty. Castigador
who directed the stoppage of the hauling and scanning of the container vans in ACY. The Executive judge
of the RTC issued a temporary restraining order prohibiting BOC from removing the container vans in
ACY and directing the BOC to resume its operations inside ACY. Was it proper for the RTC to issue the
writ of preliminary injunction?

A: NO. A writ of preliminary injunction is a preservative remedy for the protection of substantial rights and
interests. It is not a cause of action itself, but a mere provisional remedy adjunct to a main suit. It is granted
at any stage of an action or proceeding prior to the judgement or final order, requiring the party or a court,
agency or a person to refrain from a particular act or acts, in which case it shall be known as a preliminary
mandatory injunction. It may be granted by the court where the action or proceeding is pending. The
purpose of the injunction is to prevent threatened or continuous irredeemable injury to the parties before
their claims can be thoroughly studied, and its sole aim is to preserve the status quo until the merits of
the case are fully heard. The issuance of a writ of preliminary injunction is governed by Rule 58 of the
Rules of Court.

In the instant case, the requisites for the issuance of a writ of preliminary injunction, as laid down, were
not met. First, Reta had no clear and unmistakable right on the conduct of examination in ACY. The conduct
of examination in ACY premises is governed by the MOA between Reta and the BOC. It is undisputed any
of the parties any of the parties may revoke it for cause at any time before the end of its term. On March,
BOC has already revoked the MOA on the ground of strained relations due to Reta’s closure of the ACY
premises. The revocation was made before the issuance of the assailed RTC Order. Second, it follows that
there is no substantial or material invasion of Reta’s right. Third, the damage or injury allegedly sustained
by Reta is not irreparable. As set out, the damages or injury suffered by the party applying for injunction
must be unquantifiable.

Q: S.P. Corporation filed a complaint for Recovery of Property with application for temporary restraining
order and/or preliminary injunction against the heirs of Mr. B. The case was then raffled to Branch 253
of RTC of Las Piñas. Mr. G, one of the heirs of Mr. B, filed an Omnibus Motion praying that another raffle
of the case be held because they were not able to receive any notice of raffle to which S.P. Corporation
didn't oppose. S.P. Corporation then filed a Motion for Service of Summons by Publication on all the
heirs of Mr. B except Mr. G because the addresses could not be ascertained despite diligent inquiry. On
the day of the raffle date requested by Mr. G, both counsels were present. However, the counsel of Mr.
G opposed the said raffle for the reason that the other defendants were not duly notified. When the
case reached the Supreme Court, Mr. G contends that under Rule 58, a case may be raffled only after
notice to and in the presence of the adverse party. These requisites according to him are mandatory.
Furthermore, he maintains that the latter part of the rule, which allows service of summons to be
dispensed with in case the adverse party cannot be located despite diligent efforts, should not be
isolated from other related provisions. Decide the case.

A: Mr. G’s argument is incorrect. Under par. 2 and 4 Rule 58, the required prior or contemporaneous service
of summons may be dispensed with in the following instances: (a) when the summons cannot be served
personally or by substituted service despite diligent efforts, (b) when the adverse party is a resident of the
Philippines temporarily absent therefrom, or (c) when such party is nonresident. In such an event, the
notice of raffle and the presence of the adverse party must also be dispensed with. The requirement of
notice of the raffle to the party whose whereabouts are unknown does not apply because the case will
have to be raffled first before the court can act on the motion for leave to serve summons by publication.

Q: A city road, connecting Barangay Cupang and Marcos Highway, was to be constructed. Sunrise
Garden, one of the affected private landowners, executed an Undertaking to construct the road at its
own expense subject to reimbursement through tax credits. When Sunrise Garden’s contractor was
about to position its equipment, armed guards, who were allegedly hired by Hardrock Aggregates,
prevented them from using an access road to move the equipment. Hence, the trial court, upon motion
of Sunrise Garden, issued a writ of Preliminary Injunction. While the case was still pending, informal
settlers encroached the area which led to the issuance of an Amended Writ of Injunction which includes
all other persons or groups preventing the construction. Upon return to the area, Sunrise Garden was
again blocked by armed guards, allegedly hired by First Alliance Real Estate. A Motion to cite K-9 Security
Agency in contempt was filed by Sunrise Garden. The respondents, K9 Security along with First Alliance,
opposed the Motion to cite them in contempt, raising the defense of lack of jurisdiction over their
persons, since they were not bound by the Amended Writ of Preliminary Injunction. The trial court
granted Sunrise Garden Corporation's Motion. The Court of Appeals, however, annulled the Amended
Writ of Preliminary Injunction issued by the trial court. Is the contention of respondents correct?

A: YES. The court cited Sec. 5, Rule 58 which states that “No preliminary injunction shall be granted without
hearing and prior notice to the party or person sought to be enjoined. . .” Here, petitioner was not only
not impleaded as party to the case, but that it was never given prior notice regarding the writ of injunction.
The assertion that notice was already made to Hardrock Aggregates, Inc. is specious. There is no showing
at all as to the relationship between Hardrock Aggregates, Inc. and First Alliance. Absent any proof that
they are one and the same, they should be treated as separate and distinct personalities.

Q: Sometime in or before September 2014, Spouses Tumon applied for a loan with Radiowealth Finance
Company, Inc. to finance their tokwa business. Radiowealth granted them a loan in the total amount of
P2,811,456.00, to be paid within 4 years. However, they received only P1,500,000.00 after a processing
fee/documentation expense of P100,000.00 and interest of P1,311,456.00 were charged by
Radiowealth; the loan was secured by a real estate mortgage constituted upon their real property
covered by TCT No. 009-2010000083. Subsequently, the spouses suffered losses due to intense market
competition and they failed to pay their monthly amortizations. The 11 monthly amortizations they paid
from November 2014 to September 2015 totaled P644,292.00. Representatives of Radiowealth came to
their residence and threatened that if they failed to pay 2 consecutive amortizations, Radiowealth
would have the right to take over their house, the property subject of the mortgage. The spouses asked
Radiowealth to lower the monthly amortization and to extend the payment period, which they were
promised; however, representatives of Radiowealth asked petitioners to sign a Deed of Sale under Pacto
de Retro instead. Based on the above allegations, the spouses filed a complaint for Nullification of
Mortgage Documents, Promissory Note, and Damages against Radiowealth Finance Company, Inc.
Radiowealth filed before the Executive Judge of the RTC an Application for Extrajudicial Foreclosure of
Real Estate Mortgage against the spouses' property. Thus, spouses filed with the RTC an Application for
the Issuance of a Temporary Restraining Order (TRO) and/or WPI to restrain Radiowealth and any person
acting in its behalf from foreclosing and selling their real property. Is it proper to dismiss Spouses
Tumon's application for WPI?

A: YES. Section 3, Rule 58 of the Rules of Court provides the grounds for the issuance of a preliminary
injunction. For a court to decide on the propriety of issuing a TRO and/or a WPI, it must only inquire into
the existence of two things: (1) a clear and unmistakable right that must be protected; and (2) an urgent
and paramount necessity for the writ to prevent serious damage. In addition to these requirements, the
issuance of a WPI in the context of a judicial or an extrajudicial foreclosure of real estate mortgage requires
compliance with the additional rules in A.M. No. 99- 10-05-0, as amended. Rule 2 clearly states that, as a
rule, no TRO/WPI shall be issued against the extrajudicial foreclosure of real estate mortgage on the
allegation that the interest on the loan is unconscionable. However, a TRO/WPI may be issued if the debtor
pays the mortgagee the 12% required interest on the principal obligation as stated in the application for
foreclosure sale, which shall be updated monthly. Accordingly, to be entitled to a TRO/WPI under Rule 2
of A.M. No. 99-10-05-0, as amended, petitioners were required to pay at least 6% p.a. interest on the
principal obligation as stated in the application for foreclosure sale. However, there was no showing that
petitioners had complied with this requirement upon filing the application for TRO/WPI.
Q: Reta entered into a Memorandum of Agreement (MOA) with the BOC for the free use of his container
yard as the designated examination area for the container vans in the Port of Davao for a period of 25
years. The MOA also provided that the parties may revoke it for cause at any time. BOC claimed that
Reta closed the container yard and barred customs examiners from entering the premises. On the same
date, Atty. Castigador informed Reta, through a letter, of his intention to conduct the examination of the
container vans and the Philippine Ports Authority (PPA) premises and to reexamine the MOA as its
purpose no longer exists. Is there grave abuse of discretion on the part of the RTC in issuing a writ of
preliminary injunction in favor of Reta?

A: YES. The requisites for the issuance of a writ of preliminary injunction are as follows: (a) the applicant
must have a clear and unmistakable right to be protected, that is a right in esse; (b) there is material and
substantial invasion of such rights; (c) there is an urgent need for the writ to prevent irreparable injury to
the applicant; and (d) no other ordinary, speedy and adequate remedy exists to prevent the infliction of
irreparable injury. In the instant case, the requisites for the issuance of writ of preliminary injunction, as
laid down, were not met. First, as the BOC is empowered to revoke the MOA, Reta has no clear and
unmistakable right on the continuation of customs operations in ACY preises. Second, it follows that there
is no substantial or material invasion of Reta’s right. A right does not exist, there can be no substantial or
material invasion thereof. Third, the damage or injury allegedly sustained by Reta is not irreparable for the
petition pointed out that Reta was able to state in his Complaint an amount (i.e., Php100,000.00)
pertaining to the loss of earnings he suffs for each day the BOC is not conducting examinations in ACY.

Q: An application for a writ of preliminary injunction with a prayer for a TRO is included in a complaint
and filed in a multi-sala RTC consisting of Branches 1, 2, 3, and 4. Being urgent in nature, the Executive
Judge, who was sitting in Branch 1, upon the filing of the application aforesaid, immediately raffled the
case in the presence of the judges of Branches 2, 3 and 4. The case was raffled to Branch 4 and the judge
thereof immediately issued a TRO. Is the temporary restraining order valid? (2001 BAR)

A: NO. It is only the Executive Judge who can issue immediately a TRO effective for 72 hours from issuance.
No other judge has the right or power to issue a TRO ex parte. The judge to whom the case is assigned will
then conduct a summary hearing to determine whether the TRO shall be extended, but in no case beyond
20 days including the original 72- hour period.

RECEIVERSHIP
Q: Paula filed a complaint against Jolly for the foreclosure of a mortgage of a furniture factory with a
large number of machinery and equipment. During the pendency of the foreclosure suit, Paula learned
from reliable sources that Jolly was quietly and gradually disposing of some of his machinery and
equipment to a businessman friend who was also engaged in furniture manufacturing such that from
confirmed reports Paula gathered, the machinery and equipment left with Jolly were no longer sufficient
to answer for the latter's mortgage indebtedness. In the meantime, judgment was rendered by the court
in favor of Paula but the same is not yet final. Knowing what Jolly has been doing, if you were Paula's
lawyer, what action would you take to preserve whatever remaining machinery and equipment are left
with Jolly? Why? (2001 BAR)
A: Paula’s lawyer should file a verified application for the appointment by the court of one or more
receivers. Receivership is proper in an action by the mortgagee for the foreclosure of a mortgage when it
appears that the property is in danger of being wasted or dissipated or materially injured and that its value
is probably insufficient to discharge the mortgage debt.

REPLEVIN
Q: To be able to secure financial accommodations from Makati Leasing, Wearever discounted and
assigned several receivables under a Receivable Purchase Agreement. To secure the collection of the
receivables assigned, private respondent executed a chattel mortgage over certain machineries which
were bolted to the ground. Upon default, Makati Leasing move for extrajudicial foreclosure of the
mortgage properties and filed an action for replevin which was granted by the court. Can the
machineries bolted to the ground be a subject of replevin?

A: Machineries bolted to the ground are real properties that may not be the subject to replevin.

Q: William alleges that he owns a Range Rover. The vehicle was entrusted to Frankie, a secondhand
seller, for resale to buyers. Frankie failed to remit the proceeds of the sale and also failed to return the
vehicle. The vehicle reached the hands of Alvin and was registered in his name. William then filed a case
for recovery of possession with writ of replevin against Alvin. Alvin then filed a Motion to Quash the
writ for failure of William to establish his ownership over the vehicle. Should the writ be issued?

A: NO. In a complaint for replevin, the claimant must convincingly show that he is either the owner or
clearly entitled to the possession of the object sought to be recovered. By entrusting the vehicle to Frankie,
William constituted the former his agent, who by acting in the latter’s behalf, was able to sell the vehicle.
Since Frankie was able to sell the subject vehicle, William thus ceased to be the owner thereof. Nor is
William entitled to the possession of the vehicle; together with his ownership, William lost his right of
possession over the vehicle. Considering that he was no longer the owner or rightful possessor of the
subject vehicle at the time he filed the case, he may not seek a return of the same through replevin.